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The challenge of counseling the commander in chief

Barron, Goldsmith discuss their former advisory roles in the OLC

By Brett Milano, November 3, 2017

Credit: Heratch Photography

A panel on “The Office of Legal Counsel and the Challenge of Legal Advice to the President” shed light on the often-mysterious workings of the OLC. Both panelists had served on that body: Moderator David Barron ’94, during Barack Obama’s first term, and Harvard Law Professor Jack Goldsmith, in George W. Bush’s second. Barron, now a judge on the U.S. Court of Appeals for the 1st Circuit, was on the HLS faculty prior to his appointment to the bench in 2014, and is still a visiting professor at the Law School.

The main challenges, they explained, come from the fluid nature of the hierarchy, from the inherent difficulty in advising a President—and more recently, from public scrutiny of the OLC in an age of covert warfare. Sometimes seen as an entity with wide-ranging political power—or conversely, as a strictly advisory board with no real power at all—the OLC really falls into a grey area. As Goldsmith put it, “It’s a tiny sliver [of the administration], but a hugely important sliver.”

Barron began the panel by explaining the power structure: The OLC reports to the Attorney General, who has the responsibility of interpreting the law; the AG reports to the president. But the president also has his own lawyer, and the divisions of power between AG, OLC and White House counsel can vary with each set of personalities. The president, as Goldsmith noted, “can overrule anyone he wants.” The OLC also isn’t as close to the President as one might suppose; Barron said that in his year and a half in the job he spoke directly with the president only two or three times. But during that time he advised on a wide range of issues, “from Ronald Reagan’s hundredth birthday up to the Affordable Care Act.”

Goldsmith expanded on the particular balancing act that the OLC must manage between providing objective advice and serving a president. “I thought my role was to provide objective legal advice, free of any political considerations. That lasted maybe one day on the job.” In truth, he said, loyalty is always a factor. Considering their respective politics Goldsmith noted, “It was no accident that Bush chose me rather than David, and that Obama chose David rather than me. As [former Attorney General] Elliot Richardson said, you need to keep the political dimension in mind. If you’re advising a question like ‘Can I use force abroad in this situation?’, you are not a judge and you’re not neutral about the President’s ends; you are trying to help him achieve those ends. That doesn’t mean that it was my job to find a way for any possible legal argument. But I do mean that it wasn’t my job to say yes or no, I wanted to help the president achieve his goals in a way that was lawful.”

The OLC’s work, Barron said, is also unique in that its lawyers interpret actions that haven’t yet been taken. “The question we consider is whether something can be done. That’s not something that a judge would ever have to confront, in that case there’s a dispute over something that has already happened. In the OLC’s case, you’re advising a person with a problem: Can a particular action be taken, is this a good plan of action, or is there some other way to achieve the goal? And the consequence is that a simple yes/no answer won’t do.”

One dramatic example of the OLC’s work came to light during the Bush era, in which Bush was given opinions that narrowly defined torture and effectively authorized waterboarding and other techniques. This gave the OLC a visibility it never had before. “After 9/11 the office issued some opinions that later leaked. These in my opinion were flawed legal opinions,” Goldsmith said. “These concerned interrogation, surveillance, controversial issues that you know about. And they were written more like briefs than pretending to be detached legal counsel. They approved some controversial things, and this raised questions: Who are these people and why should they be allowing the president to do these things? They seemed to be approving actions that weren’t lawful—or moral, if that is even relevant. But it was the president’s power being exercised.”

As Barron pointed out, this wasn’t the first time the OLC’s work has been historically charged: He cited 1940’s controversial “Destroyers for Bases” agreement—in which the U.S. transferred destroyers to Winston Churchill’s navy in exchange for British landing rights, with approval from Attorney General Robert Jackson. “What is unique is the sustained nature of the current conflict,” he said, “And also the way the conflict has played out, with so much of it being done covertly. This action [the ‘enhanced interrogations’] wasn’t known by the public; the first thing they saw was the legal opinion describing it. So this whole notion of secret law disturbs people, it doesn’t seem like what a democracy would do. But in fact, advice is often given in secret.”

As Goldsmith emphasized, the OLC is there to give legal advice, not to authorize a controversial mission. This came up once again concerning the Obama administration’s carrying out of drone strikes. “The OLC didn’t decide whether we should do them or not, but they were definitely involved in answering the legal questions. Ultimately they and the Attorney General are exercising the president’s power to interpret law as a chief executive.” But as always, the buck stops with the president. “The Bush administration had an inflated view of the OLC’s importance, especially when they were telling him yes all the time.”

One attendee pointed to the blackboard diagram, showing the various legal offices under the president and asked, “What happens when those boxes get populated by sycophants?” Goldsmith replied that the Bush administration had faced such an accusation, but most of its OLC was acting in good faith. “And I think the current one has been extraordinarily independent in standing up to a president who has been doing his best to destroy them.” He cited Attorney General Jeff Sessions recusing himself from the investigation into possible collusion between the Trump campaign and Russian elements, and deputy attorney general Rosenstein appointing special prosecutor Robert Mueller–neither action approved by Trump. “If you look at these boxes, it’s hard to get a real sycophant in there.”